Phil Syrpis | ‘Judicial Power and the Left’ – A short response

I have spent the last days reflecting on an excellent collection of short essays ‘Judicial Power and the Left’. The essays examine the relationship of the Left with the judiciary, and are best seen as a reaction against the Left’s (and here I quote from Jon Cruddas MP’s Foreword) ‘retreat towards the law and continental constitutional separation of powers and away from democracy and parliamentary sovereignty’ over the past fifty years.

I thoroughly enjoyed the book. It provides an excellent account of the reasons, and there are many, why the Left is right to be sceptical about, and suspicious of, both everyday judicial processes, and the trend towards what may be termed ‘legal’, rather than ‘political’, constitutionalism. It provides pause for thought in the context of the Brexit debate, as regards both the reasons underlying the vote to Leave, and the possible futures facing the UK in the wake of the referendum vote. I explain the strength of the case the book makes against legal constitutionalism in the first part of this post. In the second, however, I seek to explain the reasons why the book’s central message, that ‘those on the left should not shelter behind an inflated role for the courts, but should instead embrace parliamentary politics in the nation state’, ultimately fails to convince.

My argument proceeds on the basis that the theoretical arguments are, ultimately, very finely balanced. Thus, it is empirical, instrumental, factual and/or practical arguments which prove decisive. In the collection, some of the arguments against legal constitutionalism are overstated. More importantly, the arguments against political constitutionalism are overlooked; as are arguments concerning the way in which the political and legal elements of the constitution overlap and interrelate. In the context of Brexit, I conclude that the prospect of a return to unadulterated parliamentary sovereignty in the UK, coupled with a conscious (and increasingly ignominious) retreat from the constitutional settlement we have and are developing as members of the European Union, will herald nothing but years of self-inflicted economic and social harm. It is, from a Left perspective, far better to stop Brexit, and remain within the current constitutional structure.

Starting points

Like most of the contributors to the collection, I choose not to enter into the debate on what the Left is, and what its ultimate aspirations might be. Of course, absent a clear definition of the Left, and of the changes it might seek to make (and contributors to the book convincingly suggest that the Left’s grudging embrace of legal constitutionalism has been accompanied by a retreat away from socialism, and towards ‘soft’ forms of capitalism), it is difficult to come to a firm view on the attitude the Left should have towards judicial power. I am content to take the Labour Party manifesto of 2017 as an indicative guide of the current ambitions of the Left. Contrary to what is suggested by some of the contributors, there is little or nothing in the UK’s current constitutional structure, within the EU, which would prevent the Labour Party from carrying out its democratic mandate, in the event that it were able to secure power (see, for example, the analysis here).

By way of brief context, I should state that, before Brexit seemed to take over, I edited a book in 2012 discussing the relationship between the legislature and the judiciary in the EU internal market. My thoughts developed into an article for the Common Market Law Review in 2015 on the relationship between primary and secondary law in the EU. In that writing, I sought to reflect on the nature of the EU’s constitutionalism. There is no doubt that the Court of Justice of the European Union (CJEU) has a strikingly broad judicial power to interpret the relatively open-textured Treaties, and to interpret and review secondary legislation adopted by the political institutions of the EU. It has often exercised this power in ways which have surprised Member State governments, and frustrated the ambitions of the Left (for example in the infamous Viking and Laval cases; and the other examples cited in my chapter on Labour Law here). On other occasions however, its jurisprudence has shown itself to be sensitive to developments in the political process, for example, changes to the text of the Treaties, and the adoption of secondary legislation, and much more in tune with the ambitions of the Left (for example in relation to the development of discrimination law, and in the broad scope accorded to the rights of EU citizens). My prime concern was that the case law of the CJEU was unpredictable, and that it did not seem to be based on a coherent understanding of its own ‘proper place’ in the constitutional structure. While I was at pains in my earlier writing not to take a strong view on the ‘proper place’ of the CJEU, the EU’s constitution is without question more legal than the UK’s, and, therefore, the risk of judicial overreach with ‘the potential to undermine the rule of law and to impair effective, democratic government’—the key concern of the Judicial Power Project—is a real one in the EU context.

The case against legal constitutionalism

The book presents a compelling array of ‘reasons why those on the left ought to favour an appropriately circumscribed judicial role’. The collection is full of instances in which the courts have disappointed the Left. Courts are said to be consistently supportive of capital and hostile to labour in general and trade unions in particular. There is said to be no recognition of the inequality of bargaining power between the parties in a contract of service. The judiciary is said to be an instrument of the ruling class, to be trusted only to protect property rights. The rules which judges apply are ‘tilted towards the market’ (as Richard Tuck puts it in his essay). Judges have been ‘dedicated to preserving the status quo, unequal, distribution of power, wealth, and privilege’, to quote from Gerald N. Rosenberg’s reflections on the historic role of the US Supreme Court and progressive politics. They have supported and reinforced racial discrimination. Courts, Rosenberg says, ‘may be structurally conservative in ways legislatures are not’. We hear from Mike Macnair of judges’ reactionary conservatism, of their illiberal instincts, their ‘commonly undisclosed and concealed’ political commitments. Lawyers are not spared. They ‘credit their success solely to meritocracy and hard work, not class privilege’. Their training ‘disinclines them to see the need for systematic and institutional change’.

The evidence is drawn from recent and distant history, from a range of (mainly common law) jurisdictions, and the international legal order. We see how the judiciary has acted in times of plenty and crisis, in response to the acts of governments of all political hues. My objective here is not to summarise the rich scholarship – I just recommend that you read it.

The sections which discuss the negative effects of legal constitutionalism on popular engagement with politics resonate particularly strongly. It is argued that systematically using the courts to decide contentious policy debates will cause the muscles of citizen participation in democratic decision-making to atrophy. ‘Delegating power to judges may debilitate informed and energetic citizen participation in democratic policy debates’ (as Chye-Ching Huang and Brian Highsmith put it in their essay). In the judicial context, political debates are recast in legalese; language which is ‘often technical, abstruse, and uninspiring’. Law is said to depoliticise, and to operate as (in Chris Bickerton’s terms) ‘a substitute for’ politics. Through this lens, the Brexit vote, seen as ‘a vote to put in place a less restrictive constitutional framework than has been the case since 1973’, is celebrated. For Richard Tuck (also here), Brexit represents the beginnings of a feeling that ‘the political process could, after all, be responsive’.

My case for legal constitutionalism

To set the scene for my critique, it is useful to disentangle the various strands of the case which the book makes against legal constitutionalism. Across history, and across the world, the courts have, as the collection amply demonstrates, decided disputes in ways that are inimical to the interests of the Left. There are many institutional problems with legal adjudication and legal discourse, and a strong and damaging, connection between legal constitutionalism and depoliticisation. The empirical, instrumental and/or practical case against the law is thus a strong one. However, the theoretical case against legal constitutionalism is, in my view, weaker. This is for two linked reasons. First, the countervailing arguments in favour of a legal, or at any rate, more balanced, constitutionalism, are not given significant prominence. And second, the empirical case which one might fairly make, from a Left perspective, against parliamentary politics in the nation state, is almost completely overlooked (though there is some discussion of whether the Left is right to have declining confidence in the capacity of the political apparatus of the nation state to serve as an engine of enduring social and economic reform). The reality of legal constitutionalism is thus unfairly contrasted with an idealised notion of parliamentary sovereignty in the UK.

Let me begin with the theoretical case. Here, the Judicial Power Project, under whose auspices the collection was written, has a definitive standpoint. It is motivated by concerns relating to judicial overreach, which is characterised as having ‘the potential to undermine the rule of law and to impair effective, democratic government’. The overall stance over the Judicial Power project has been the subject of a strong critique by Paul Craig (which has been published in the latest edition of the University of Queensland Law Journal, with a reply to that critique from Richard Ekins and Graham Gee). My view, from which much of my argument flows, is that the theoretical arguments on various brands of constitutionalism are finely balanced, and, crucially, context dependent.

As noted in this collection by Alan Bogg, ‘constitutional theories take shape in specific contexts of political power and conflict. They are never (or at least never should be) exercises in abstract philosophising’. Given that the law sets the framework of all constitutional systems, the Left cannot but engage with it. Arguments between legal and political constitutionalists are arguments about the balance of power between the legal and the political (arrangements for the entrenchment and alteration of constitutional standards, the scope and intensity of judicial review, and so on). Law and politics interact in a multiplicity of ways. As stated in the collection, absent support in both the public and private realms, law cannot act as a strong agent of social change. But, while recourse to law may depoliticise, the law has also come to play an increasingly significant role in enhancing and developing the political constitution (as exemplified by the Supreme Court’s decision in Miller), and, more generally, in requiring a better quality of decision-making by those exercising public powers. In relation to the broad underlying arguments for and against political and legal constitutionalism, there is a case to be made for expertise as well as for democracy (and for and against procedural and substantive checks on the powers democratic elected governments are able to exercise); for rights as well as for interests; and for the entrenchment of certain key principles as well as for change as society evolves. There is a rich literature on the legitimacy of governance structures (at the sub-national, national and international levels), with many prominent theorists, including from those on the political Left, advocating a significant role for constitutions and courts. The challenge, as Adam Tomkins has put it, is to ensure that it is ‘a happy mix with a nice balance, a good mix, a coherent mix’, and not a ‘riot, a mess, a muddle, a dysfunctional, conflicted, fragile, uncertain, mixed-up constitution’.

Thus, the focus should move from the theoretical to the empirical. As stated above, the collection makes strong arguments against the fact of judicial intervention. Theoretical arguments become and appear stronger when they are buttressed with real-world examples. But one should not fall into the trap of believing that the way things were, and the way things are, is of necessity an indication of the way things will be. Indeed, one of the prime tasks for the Left is to imagine a different future, and then to take steps to ensure that such a future may come into being. This collection ends up advocating a strong form of political constitutionalism (for example, for a focus on ‘substantive political battles’ rather than on ‘harmless legal ones’); I would instead argue that a better strategy for the Left is to use all avenues, political and legal, in pursuit of its desired social change.

In the collection, some real-world arguments against the law and the judiciary are overstated. The link between legal constitutionalisation and depoliticisation is, for example, said by Gerald Rosenberg to result from the fact that ‘lawyers are taught that all problems have legal solutions’. I would demur; in legal education there is a strong focus on the limits of law, and deeply ingrained respect for the (contested) boundaries between the political and the legal realms. I share Alan Bogg’s view that ‘the historical picture of the legislator as hero and judge as villain is now far too simplistic’. It is through the common law, not parliamentary politics, that the government’s decision to introduce employment tribunal fees was overturned by the Supreme Court in the UNISON case. And, as Keith Ewing and John Hendy note in their contribution to the collection, it is activist judges, reading the ECHR as a living instrument, in response to litigation brought by political actors from the Left, who have been responsible for a progressive turn in the interpretation of Article 11 on the freedom of association. The Left is learning, and can continue to learn, how to use the law for its ends. Political defeats can, on occasion be reversed, or their effects attenuated, via action in the judicial arena. Similarly, judicial victories can be consolidated and sustained through coordinated action in the political arena.

The collection also posits an idealised picture of parliamentary politics in the nation state. At the risk of stating the obvious, the Left has all too rarely prevailed in democratic elections in the UK. Moreover, the forces ranged against the Labour governments which have come into power have succeeded in frustrating the occasional attempts to initiate and implement radical change. The reality is that a succession of Conservative governments has acted to increase the scope of management prerogative and limit the rights of workers and trade unions. In the aftermath of the Brexit vote, the UK’s constitutional system, freed from EU law constraints, is prepared to contemplate unprecedented powers for Ministers to remedy deficiencies in retained EU law and implement the Withdrawal Agreement with the EU. Hard won victories for the Left are, more than ever before, vulnerable.

Over the years of EU membership, the UK parliamentary model has, with varying degrees of success, accommodated the EU’s much more legalistic constitutional order. That constitutional order is by no means a neutral, benign force. In this collection, it is attacked both in relation to the way in which it has, incrementally, developed, and for its content. The charges of ‘constitutional subterfuge’ (Richard Tuck) and a ‘general elevation of the unaccountable’ (Danny Nicol) have force in relation to the EU constitution-building process. But, other charges are inflated. It is, for example, far from the case that the EU constitution is ‘beyond the power of the government to change’(Tuck), that it affords ‘no meaningful discretionary power for the executive to act’ (Helen Thompson), or that it is necessarily inimical to the Left. The core of the EU project, the single market, is contested. Politics and law, technocracies and democracies, combine to shape the EU level constitutional order, and influence the extent to which it favours the interests of the Right or the Left.

It is also important to realise that Brexit does not represent a choice between EU membership and splendid isolationism. The UK will continue to have relationships with other states, in order to facilitate the movement of people, goods and services. All such relationships are backed by legal structures of some kind. As Jane Kelsey notes in her essay, the alternative to EU trade rules is ‘a system in which rules that privilege capital are enforced through a biased extra-territorial dispute process’, which ‘cannot be fixed’. By all means argue against the EU’s constitutional regime, but be alert to the way in which the interests of Left might be treated under the alternatives. And also be alert to the implications of the manner of the UK’s exit from the EU. Trust in the UK has eroded. Its bargaining power is much reduced.

The thrust of this collection is that the Left has been suckered into ‘seeking the shelter of continental-style structures’, and ‘struck a [Faustian] bargain with judicial power’. The UK Left should instead free itself from structurally conservative, legal constraints on democratic power, and focus on delivering political change at the domestic level. Of course it is true that Parliamentary politics may deliver a Labour government; and under traditional models of the political constitution, it is axiomatic that its programme would face few legal obstacles. This might very well herald ‘lasting social change’; but it is also possible the gains achieved by a Labour government would be undone. After all, as Helen Thompson notes, ‘representative democracy requires those who lose to accept the result of periodic elections to determine who exercises power’. The Left’s freedom of action is matched by that of the Right.

The current arrangements, within the EU’s legal constitutional order, do impose constraints on national governments. The EU’s single market rules and fundamental rights norms impose constraints, which are enforced by the CJEU and national courts. The Left is right to be suspicious of these processes; but wrong to dismiss them out of hand. The Left can and should argue for changes to the EU’s constitutional rules – the Treaties have, after all, been changed a number of times since the Single European Act in the mid-1980s. It can and should continue to make arguments about the meaning and scope of EU citizenship, and the relationship between economic freedoms and social rights in the internal market. It can and should argue for changes to the EU’s decision-making structures (though no other international organisation scores as highly in terms of its democratic processes and ethos). Legal arguments can and should be buttressed by political arguments, and the broader mobilisation of society. As Rosenberg states, ‘deep-seated social conflicts can’t be resolved through litigation’ (one might, of course, also question the extent to which they can be resolved by legislation). But the legal realm, like the economic, should not be abandoned by the Left. Without concerted engagement on the part of the Left, it is difficult to imagine how judges and lawyers might be moved to respond to the Left’s concerns.

This collection demonstrates the dangers which the Left faces in accepting legal constitutionalism. It serves as a salutary reminder that constitutions, and legal processes, tend to work against the interests of the Left. The EU’s constitutional system attempts to balance the economic and social, and, in both the legal and the political realms, has tended systematically to favour the former. Changes are required if the Left is to realise its ambitions.

Some on the Left, including in this collection, see great opportunities in Brexit. They focus on the opportunities inherent in systems of political constitutionalism, and ignore, or belittle, the risks. There are of course, many on the Right, including some who sit around the Cabinet table, who are also relishing the great opportunity afforded by Brexit: to begin an assault on the rights of workers. A return to unadulterated parliamentary sovereignty in the UK, coupled with a conscious, and increasingly ignominious, retreat from the constitutional settlement we have and are developing as members of the European Union, risks nothing but years of self-inflicted economic and social harm, which would cause untold damage to the cause of the Left. Far better to embrace a more legal, and more international, constitutionalism, and – whilst always cognisant of, and seeking to overcome, the many barriers identified in this collection – to have recourse to legal, as well as political, means to achieve lasting social change.